United States v. Jones

FILED
United States Court of Appeals
Tenth Circuit
December 18, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-3104
BRUCE M. JONES, II,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:10-CR-20004-JWL-1)
Phillip R. Gibson, Thompson & Gibson, LLC, Blue Springs, MO, for Defendant-
Appellant.
Terra D. Morehead, Assistant United States Attorney (Barry R. Grissom, United
States Attorney, with her on the brief), Kansas City, KS for Plaintiff-Appellee.
Before HARTZ and HOLMES, Circuit Judges, and EAGAN, * Chief District Judge.
HOLMES, Circuit Judge.
Defendant-Appellant Bruce M. Jones, II appeals from a district court’s
*
Honorable Claire V. Eagan, Chief Judge, United States District Court for
the Northern District of Oklahoma, sitting by designation.
denial of his motion to suppress evidence. He sought to suppress all evidence
that Kansas law enforcement obtained from searches of his residence and vehicle
pursuant to search warrants issued by a Kansas state court, including an estimated
355 marijuana plants. Mr. Jones alleges that officers of the Missouri State
Highway Patrol—who in these circumstances had no authority under Kansas law
to operate in Kansas—violated his Fourth Amendment rights when the officers
(a) engaged him in an accusatory conversation outside of his residence in Kansas
City, Kansas, (b) later took his driver’s license, and (c) then entered his residence
without a warrant or consent.
Mr. Jones argues that the information that the Missouri officers garnered
from their Fourth Amendment violations provided the essential foundation for the
Kansas search warrants issued for his residence and vehicle. Without this tainted
information, Mr. Jones avers, the warrants lack probable cause to support the
searches. Accordingly, Mr. Jones contends that the district court erred in
declining to suppress the evidence secured under the warrants. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s order denying
Mr. Jones’s motion to suppress and its resulting judgment.
I
The events leading to the seizure of drug evidence from Mr. Jones began
when officers of the Missouri State Highway Patrol conducted surveillance of the
“Grow Your Own Hydroponics” store (“Grow Your Own”) in Kansas City,
2
Missouri. Sergeant Troy Blunt, unarmed and dressed in plain clothes, parked his
unmarked pick-up truck approximately one and a half blocks away from Grow
Your Own. 1 Assisting Sergeant Blunt that day were Trooper Evan Tyrrell and
Corporal Andy Bell, who were in radio contact but parked several blocks away.
Both Trooper Tyrrell and Corporal Bell were uniformed and driving marked
1
The idea of surveilling hydroponics stores came about around 2003 when
Sergeant Blunt, a long-time member of the Missouri State Highway Patrol’s division of
drug and crime control, saw and heard advertisements for Grow Your Own. Although the
store’s advertisements contained no reference to marijuana, Sergeant Blunt believed that,
generally, hydroponics stores sold all the necessary components to grow marijuana.
Accordingly, the highway patrol decided to set up covert surveillance on hydroponics
stores in Missouri, including Grow Your Own.
Typically, surveillance was undertaken by anywhere from one to six officers
employing a variety of surveillance techniques. During surveillance, at least one officer
in an unmarked vehicle would wait near a store and observe customers entering and
exiting. The officer or officers often would observe what the customers purchased, run
their license plates to see where they resided, and (if appropriate) run their criminal
histories.
Sometimes the highway patrol would follow customers as they left the store and
“have a uniformed vehicle obtain probable cause to do a vehicle stop and then approach
the subject, identify them[selves], and then sometimes ask for a consensual search of the
residence, based upon how the car stop went.” R., Vol. II, at 155 (Tr. of Mot. to Suppress
Hr’g, held May 17, 2010) (Hr’g Test. of Troy Blunt). Sometimes the officers would
follow a customer all the way to his or her residence. Once there, the highway patrol
would then decide whether “to pull trash on this person” (presumably, search their trash
receptacles) or approach them and do a “knock-and-talk.” Id. at 156; see, e.g., United
States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir. 2006) (“[A] ‘knock and talk’ is a
consensual encounter and therefore does not contravene the Fourth Amendment, even
absent reasonable suspicion.”). The highway patrol would only follow vehicles that had a
Missouri registration and that the unit could identify as having an owner who was a
Missouri resident. According to Sergeant Blunt, the surveillance program on these stores
has resulted in well over 100 knock-and-talks, with a “vast majority” of those leading to
“indoor marijuana grow[s].” R., Vol. II, at 159–60.
3
highway patrol vehicles.
Mr. Jones arrived at Grow Your Own. After he entered the store, Sergeant
Blunt requested a computer check on the license plate of Mr. Jones’s pick-up
truck. The records indicated that the truck belonged to Mr. Jones. They also
revealed that Mr. Jones resided at a Kansas City, Missouri address, that his
driving privileges had been suspended in Missouri, and that he was on parole in
Missouri for a prior drug offense. 2
Later, Mr. Jones left the store carrying a white plastic sack with contents
that Sergeant Blunt could not see. Mr. Jones got into his truck and left the area.
Sergeant Blunt decided to follow Mr. Jones’s truck while maintaining radio
contact with Trooper Tyrrell and Corporal Bell, who followed several blocks
behind. With the Missouri officers following surreptitiously, Mr. Jones drove
from Grow Your Own in Kansas City, Missouri to his residence in Kansas City,
Kansas. The drive to Mr. Jones’s house took approximately thirty minutes and
wound through residential streets. Sergeant Blunt testified that upon reaching Mr.
Jones’s residence, neither he, nor the other officers, knew that they had entered
the State of Kansas.
Upon arriving at his residence in Kansas City, Kansas, Mr. Jones proceeded
2
Sergeant Blunt testified that prior to deciding whether he would follow Mr.
Jones, the vehicle had already checked back to a Missouri address. However, Sergeant
Blunt was not sure if he received all of Mr. Jones’s criminal history prior to the decision
to follow Mr. Jones.
4
to an alley that runs behind his residence and parked in front of a shed, which
stood in a grassy area adjacent to the alley. The shed stood roughly thirty feet
from the back door of his residence. After waiting for the other officers to arrive
near the alley entrance, Sergeant Blunt pulled into the alley and parked his
vehicle three to ten feet behind Mr. Jones’s truck, with the other officers’ vehicles
following behind him. As Mr. Jones was getting out of his truck, Sergeant Blunt
walked up along the driver’s side of Mr. Jones’s truck and leaned against the
truck’s bed, near the gas cap area. Trooper Tyrrell and Corporal Bell also exited
their vehicles, eventually standing somewhere behind Sergeant Blunt.
Regarding his encounter with Mr. Jones, Sergeant Blunt testified as
follows:
Q. [T]ell me what occurred then as you approached him.
A. I identified myself.
Q. How did you do that?
A. I walked up to him, said, I’m Sergeant Troy Blunt with the
Missouri State Highway Patrol conducting a drug
investigation, and I’m here for your marijuana plants.
....
Q. Why d[id] you tell the defendant that, Sergeant Blunt?
A. It covers several different areas. First of all, it
immediately lets him know who I am and that I’m
conducting a drug investigation and then what I’m there
for.
5
Q. All right. In connection with your statement to him about
why you were there, what reaction did you get from the
defendant?
A. His head dropped and he said, “Oh, shit.”
....
Q. What happened next?
A. Based upon his reaction, that’s why I used that approach
like that, is to see what his visual reaction is to it, to
continue the investigation. He kind of sticks his head back
up and asks me how do I know he’s got marijuana plants,
and I said, “Because you said, ‘Oh, shit,’” and we started
laughing. So at that point in time I think I’m leaning on
his truck with the right side of my body and my arms up
over the bed of the truck.
Q. How would you characterize the encounter with the
defendant that you had on this day?
A. At that point, very, very casual.
....
Q. Have you had occasions where you’ve encountered
individuals just like you did Mr. Jones and they have
turned and walked into their house?
A. Yes.
....
Q. What was [Mr. Jones’s] reaction after that?
A. That of a man who is surrendering in a way, just kind of
like you-got-me type.
R., Vol. II, at 187, 189–92; see also id., Vol. I, at 117–118 (Dist. Ct. Mem. &
6
Order, filed June 15, 2010).
Within thirty seconds of initiating the conversation with Mr. Jones,
Sergeant Blunt asked for Mr. Jones’s identification. Mr. Jones handed his
identification to Sergeant Blunt, who relayed it to Corporal Bell. Corporal Bell
then walked back to his patrol vehicle to run Mr. Jones’s license, and Trooper
Tyrrell remained at Sergeant Blunt’s side.
As Sergeant Blunt described, Mr. Jones then began to “divert [the officers]
to another residence” by stating that “there’s somebody else, and the plants are at
their house, and he [did not] want to talk about them because he’s scared of
them.” Id., Vol. II, at 193. In a casual manner, Sergeant Blunt responded, “that’s
fine . . . but let’s clear up what we have here today,” and “let’s make sure that
there’s none here at your house.” Id.Without explicitly saying so, Sergeant Blunt indicated that he wanted to
search Mr. Jones’s residence, and if Mr. Jones “cleared it up [the officers] would
go on [their] way.” Id. at 195. Sergeant Blunt never explicitly told Mr. Jones
that he could refuse consent. Mr. Jones never told the officers that he did not
want them to search his residence or otherwise openly refuse consent to a search
of his residence. At some point during this portion of the conversation, Mr. Jones
turned and began walking toward the back door of his residence.
Sergeant Blunt and Trooper Tyrrell followed. Once Sergeant Blunt reached
within ten feet of the back door of the residence, he encountered “[a] very strong
7
odor of marijuana.” Id.; see also id., Vol. I, at 119. Still following behind Mr.
Jones, the officers then walked into a screened-in porch area. 3 Mr. Jones
unlocked the back door to his residence and the men all entered the house.
Upon entering the house, Mr. Jones went through a kitchen to a main room
and then turned to face the officers. Thereafter, Mr. Jones raised his hands with
his palms up as if to signal that there was nothing for the officers to see.
Sergeant Blunt testified about what happened next:
[A]t that point in time I just kind of looked at him like, man, I
can smell [marijuana], you know. This is just—it’s [a] very
strong odor, and let’s just get this over with, you know. He just
kind of drops his hands and reaches in his pocket and starts to
pull out some keys, and he starts walking into the living room
area and around a corner to where a door was shut, locked.
Id., Vol. II, at 199–200. Mr. Jones unlocked the door and stepped into another
room. Once inside, Mr. Jones grabbed a “long gun,” turned, and aimed it into
Sergeant Blunt’s midsection. Trooper Tyrrell was able to fire five or six rounds
at Mr. Jones, wounding him. The officers then retreated to their vehicles outside.
Once outside, Corporal Bell radioed dispatch, relaying that the officers
were located in Kansas City, Missouri. However, dispatch notified the officers
that they were in fact in Kansas City, Kansas. The Kansas City, Kansas Police
Department responded to the location and took command. Based upon statements
3
In the screened-in porch area, Sergeant Blunt noticed a “cellar-type door”
with a new, very large lock. R., Vol. II, at 197. Sergeant Blunt testified that in his
experience, a majority of “grow operations” are located in the basement of residences. Id.8
taken from Sergeant Blunt, Corporal Bell, and Trooper Tyrrell, the Kansas City,
Kansas Police Department applied for and received a search warrant to search Mr.
Jones’s residence, and later it obtained a second search warrant to search Mr.
Jones’s vehicle. The searches resulted in the seizure of evidence related to
marijuana and firearms possession—which became the basis for the indictment in
this case.
II
Mr. Jones was indicted on one count of manufacturing marijuana, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii) (Count I), one count of
brandishing a firearm during and in relation to a drug trafficking offense, in
violation of 18 U.S.C. § 924(c) (Count II), and one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
(Count III). He filed a motion to suppress, arguing that all evidence obtained by
law enforcement from Mr. Jones’s home and truck, pursuant to the two search
warrants issued by the Wyandotte County, Kansas District Court, should be
suppressed because the information used in the search warrants was obtained as a
result of an unlawful detention of Mr. Jones and a warrantless entry into his home
without consent. Following a hearing, the district court entered an order denying
Mr. Jones’s motion to suppress.
The district court’s order contained a number of points that are relevant for
purposes of this appeal. First, the district court held that the Missouri officers’
9
mistaken belief that they were in Missouri, when they were really in Kansas,
“does not alter the familiar analysis a federal court must undertake in this
situation: whether the actions of the troopers violated Defendant’s Fourth
Amendment right to be free from unreasonable government searches and
seizures.” R., Vol. I, at 121–22 (footnote omitted). Second, the district court
held that for purposes of the Fourth Amendment, Mr. Jones was not seized at the
time of the initial conversation with the officers because “a reasonable person
would not have felt that he or she was unable to terminate the encounter.” Id. at
126. Third, the district court held that, based on the totality of the circumstances,
the officers had reasonable suspicion of criminal activity when they received Mr.
Jones’s identification. Fourth, the district court held that Mr. Jones voluntarily
consented to the officers entering his residence. Finally, the district court held
that because all of the Missouri officers’ actions were lawful under the Fourth
Amendment, no viable challenge to the search warrants remained.
Following the denial of his motion to suppress, Mr. Jones entered a
conditional guilty plea to the marijuana-manufacturing count (Count I) and the
firearm-brandishing count (Count II) of the indictment. 4 Mr. Jones was sentenced
to sixty months’ imprisonment as to Count I and eighty-four months’
imprisonment as to Count II, to be served consecutively, for a total term of 144
4
The felon-in-possession count (Count III) was dismissed on the motion of
the government.
10
months, with four years of supervised release.
This timely appeal followed.
III
In reviewing a denial of a motion to suppress, “we review the [district]
court’s factual findings for clear error and view the evidence in the light most
favorable to the government.” United States v. Worthon, 520 F.3d 1173, 1178
(10th Cir. 2008). “The credibility of witnesses, the weight accorded to evidence,
and the reasonable inferences drawn therefrom fall within the province of the
district court.” Id. Finally, “[w]e review de novo the reasonableness of a search
or seizure under the Fourth Amendment.” Id.For several reasons, Mr. Jones contends that the district court erred in
denying his motion to suppress. First, he argues that because the Missouri
officers were acting outside of their jurisdiction (that is, in Kansas), without
more, their seizure of Mr. Jones effected a Fourth Amendment violation. Second,
he contends that the Missouri officers’ accusatory conversation with him outside
of his home was not a consensual citizen-police encounter and amounted to a
seizure. Third, he also may contend (albeit inartfully) that there was not
reasonable suspicion for the officers to take his driver’s license and detain him.
Fourth, he maintains that he did not consent to the Missouri officers’ entry into
his home. Finally, because the Kansas search warrants for his home and car were
based upon information improperly unearthed by the Missouri officers in
11
violation of the Fourth Amendment, the evidence secured by authority of the
warrants is tainted by this constitutional illegality and is thus inadmissable. We
address each of these contentions in turn. We ultimately conclude that Mr.
Jones’s arguments are without merit and that the district court did not err in
denying Mr. Jones’s motion to suppress.
A
There appears to be no dispute that, when they interacted with Mr. Jones,
the Missouri officers were acting outside of their jurisdiction and were not
authorized by Kansas law to perform law-enforcement functions. In particular, by
Kansas statute, law enforcement officers from another state retain the power to
arrest in Kansas only when in “fresh pursuit” of a person that has committed a
crime in the other state. See Kan. Stat. Ann. § 22-2404(2) (“Any law enforcement
officer of another state who enters this state in fresh pursuit and continues within
this state in fresh pursuit of a person in order to arrest him on the ground that he
has committed a crime in the other state has the same authority to arrest and hold
such person in custody as law enforcement officers of this state . . . .”). Mr.
Jones contends that this fresh-pursuit provision did not authorize the Missouri
officers’ actions in Kansas, and the government does not argue to the contrary.
In its order denying the motion to suppress, the district court stated:
The parties noted in their written submissions that, because Blunt
and his fellow Missouri State Troopers crossed the state line into
Kansas and contacted Defendant while mistakenly believing they
12
were still in Missouri, the troopers lacked authority to act as
law-enforcement officers under Kansas law. This mistake,
however, does not alter the familiar analysis a federal court must
undertake in this situation: whether the actions of the troopers
violated Defendant’s Fourth Amendment right to be free from
unreasonable government searches and seizures.
R., Vol. I, at 121–22. To the contrary, Mr. Jones contends: “The federal law is
clear that when a police officer effectuates a seizure, or warrantless arrest, upon
an individual outside the officer’s state jurisdiction, he violates the Fourth
Amendment.” Aplt. Opening Br. at 18; see Aplt. Reply Br. at 3 (“[A] Fourth
Amendment violation occurred by virtue of the Missouri Highway Patrol officers
seizing Mr. Jones while operating outside their state jurisdiction, regardless of
how reasonable that seizure might have been.” (emphasis added)). Mr. Jones is
mistaken.
It is “well established in this circuit that in federal prosecutions the test of
reasonableness in relation to the Fourth Amendment protected rights must be
determined by Federal law even though the police actions are those of state
police officers.” United States v. Green, 178 F.3d 1099, 1105 (10th Cir. 1999)
(emphasis added) (quoting United States v. Le, 173 F.3d 1258, 1264 (10th Cir.
1999)) (internal quotation marks omitted); see Bowling v. Rector, 584 F.3d 956,
968 (10th Cir. 2009) (“[F]or Fourth Amendment purposes, the conduct of officers
acting in excess of their statutory authority must be tested by traditional Fourth
Amendment standards . . . .”); see also Virginia v. Moore, 553 U.S. 164, 176
13
(2008) (holding that “warrantless arrests for crimes committed in the presence of
an arresting officer are reasonable under the Constitution, and that while States
are free to regulate such arrests however they desire, state restrictions do not alter
the Fourth Amendment’s protections”); California v. Greenwood, 486 U.S. 35, 43
(1988) (“We have never intimated, however, that whether or not a search is
reasonable within the meaning of the Fourth Amendment depends on the law of
the particular State in which the search occurs.”); cf. United States v. Sawyer, 441
F.3d 890, 895 (10th Cir. 2006) (“The federal test for determining the validity of
consent to search does not require a district court to consider whether a law
enforcement officer has authority under state law to request consent.”). More
specifically, “officers’ violation of state law is not, without more, necessarily a
federal constitutional violation.” United States v. Mikulski, 317 F.3d 1228, 1232
(10th Cir. 2003); accord Pasiewicz v. Lake Cnty. Forest Pres. Dist., 270 F.3d
520, 526 (7th Cir. 2001) (“A violation of a state statute is not a per se violation of
the federal Constitution. The federal government is not the enforcer of state
law.”); see United States v. Gonzales, 535 F.3d 1174, 1182 (10th Cir. 2008) (“A
state-law violation does not, however, necessarily rise to the level of a federal
constitutional violation.”). Accordingly, Mr. Jones’s argument that the Missouri
officers’ actions effected a Fourth Amendment violation simply because they
were acting outside of their jurisdiction and without authority under Kansas law is
mistaken.
14
While “compliance with state law may be relevant to our Fourth
Amendment reasonableness analysis” in some circumstances, “we have never held
it to be determinative of the constitutionality of police conduct.” Gonzales, 535
F.3d at 1182; see Sawyer, 441 F.3d at 899 (“State law is not determinative of the
federal question, but rather may or may not be relevant to the determination of the
federal question.”). In Gonzales, we explained that “compliance with state law is
‘highly determinative’ only when the constitutional test requires an examination
of the relevant state law or interests.” 535 F.3d at 1182 (quoting Sawyer, 441
F.3d at 896–97). No such examination was required in Gonzales:
[W]e need not examine state law or interests. The federal test for
determining the validity of a traffic stop simply requires us to
determine whether a traffic violation has occurred . . . . It does
not require an examination of a state’s law or interests, but
focuses instead on whether the stop was reasonable under the
circumstances.
Id. at 1183 (citation omitted). We do not perceive such an examination of state-
law interests to be required here either. The Missouri officers’ encounter with
Mr. Jones principally implicates federal legal standards related to the
reasonableness of a Fourth Amendment seizure and, at least under the
circumstances of this case, we see no need to assess state-law interests. 5 Notably,
5
By way of contrast, in Sawyer, an officer’s failure to comply with state law
was critical to a determination of whether exigent circumstances justified a warrantless
search because the “federal test for exigent circumstances asks in part whether a state
assigns a high level of interest to the evidence the government seeks to admit.” 441 F.3d
at 896; see also id. at 897 (discussing inventory searches and noting they also “involve a
(continued...)
15
Mr. Jones does not directly refute this point; in particular, he does not allege that
we are obliged to take into account any particular state-law interests. Thus, on
these facts, we conclude that whether the Missouri officers were acting without
authority under state law (that is, Kansas law) is essentially irrelevant. See
Green, 178 F.3d at 1105 (“[T]he fact that the arrest, search, or seizure may have
violated state law is irrelevant as long as the standards developed under the
Federal Constitution were not offended.” (quoting Le, 173 F.3d at 1265) (internal
quotation marks omitted)).
In arguing to the contrary, Mr. Jones relies heavily on our decision in Ross
v. Neff, 905 F.2d 1349 (10th Cir. 1990). He certainly is not the first to do so.
See, e.g., Swanson v. Town of Mountainview, 577 F.3d 1196, 1201–03 (10th Cir.
2009); Gonzales, 535 F.3d at 1182 n.2; Sawyer, 441 F.3d at 898; Mikulski, 317
F.3d at 1231–32; Green, 178 F.3d at 1106. Only a few years ago, in Swanson, we
described the facts of Ross:
In Ross, a visitor on Indian tribal land claimed that an Oklahoma
state police officer who had observed him commit a crime
unlawfully arrested him on tribal land. The defendant contended
the officer could not arrest him because a federal statute limited
jurisdiction on tribal lands to federal agents and Indian officials.
5
(...continued)
special incorporation of state law into Fourth Amendment jurisprudence”); 1 Wayne R.
LaFave, Search and Seizure § 1.5(b), at 170 (4th ed. 2004) (“[I]n some circumstances, the
controlling Fourth Amendment doctrine has been expressed in such a way that state law is
a necessary consideration in determining the reasonableness, in a Fourth Amendment
sense, of the police conduct.”).
16
We found the arrest violated the Fourth Amendment, holding that
a “warrantless arrest executed outside of the arresting officer’s
jurisdiction is analogous to a warrantless arrest without probable
cause” and is “presumptively unreasonable” in the absence of
exigent circumstances.
577 F.3d at 1201 (quoting Ross, 905 F.2d at 1354).
At first blush, Ross would seem to advance Mr. Jones’s cause and be
apposite on these facts. However, as we carefully explicated in Swanson,
subsequent decisions of our court have very narrowly circumscribed the
precedential reach of Ross and “illustrate[d] the limited scope” of its holding. Id.
at 1202. Contrary to Mr. Jones’s suggestion, these subsequent decisions have
done a great deal more than subject Ross’s holding to “some fine-tuning.” Aplt.
Opening Br. at 19.
Notably, in Mikulski, “we held a Utah detective did not violate the Fourth
Amendment when making a warrantless arrest outside his home jurisdiction, but
within another political subdivision of the state.” Swanson, 577 F.3d at 1202.
“In reaching this conclusion, we emphasized that state law allowed peace officers
(with authorization) to act within neighboring political subdivisions, whereas in
Ross, under no circumstances would the officer have had authority to act on tribal
lands.” Id.; see also Pasiewicz, 270 F.3d at 526 n.3 (distinguishing Ross by
“pointing out that [it] involved the ability of an Oklahoma state officer to arrest a
Native American on tribal trust land” and that “[u]nder federal law, the state
17
could assume criminal jurisdiction over the land only with congressional approval
or tribal consent” whereas “[t]he present case concerns the jurisdiction of officers
acting between political subdivisions of the same state”).
Furthermore, in Gonzales, “we held that an extra-jurisdictional traffic stop
[by officers in another municipality of the same state] based on an observed
traffic violation does not constitute a Fourth Amendment violation, despite the
fact that the stop violated state law.” Swanson, 577 F.3d at 1202. Among other
things, we reasoned that “the arrest in Ross took place on federal tribal land, and
not within a political subdivision, i.e., a municipality, of the same state.” Id. at
1203 (internal quotation marks omitted).
Finally, we have indicated that even when the police officers’ extra-
jurisdictional conduct occurs in another state (as opposed to another political
subdivision of the same state), at least in certain contexts, the officers lack of
authority will be of no or little import in the Fourth Amendment analysis. See
Sawyer, 441 F.3d at 895–98. Specifically, in Sawyer, we assessed and ultimately
upheld the Fourth Amendment validity of a consent to search that Kansas officers
obtained while conducting an investigation in Oklahoma. See id. at 895. We
stated that “[t]he federal test for determining the validity of consent to search
does not require a district court to consider whether a law enforcement officer has
authority under state law to request consent.” Id. More specifically, we observed
that “[t]he federal totality of circumstances test does not require an analysis of the
18
legal parameters of the Kansas Officers’ jurisdictional authority under state law.”
Id. Like Mr. Jones, the defendant in Sawyer relied on Ross. In distinguishing
Ross, we concluded: “Although we agree that Oklahoma’s interest in monitoring
law enforcement personnel within its boundaries is strong, that interest is not
sufficient to elevate this state law violation to a federal constitutional violation.”
Id. at 898. At the end, “we decline[d] to extend Ross to the facts of th[at] case.”
Id.Guided by our post-Ross decisions, we conclude that Mr. Jones’s reliance
on Ross is unavailing. Although we do not dispute Mr. Jones’s assertion that
Ross “remains good law today,” Aplt. Opening Br. at 19, it is only good law
within the scope defined and clarified by our subsequent decisions—viz., as far as
those decisions indicate that Ross goes. And those post-Ross decisions strongly
suggest that Ross travels no further than the unique factual circumstances that
spawned it: that is, a warrantless arrest by state police on federal tribal land.
Whatever the precise contours of Ross, under the guidance of our post-Ross
decisions, it is beyond peradventure that Mr. Jones’s interpretation of Ross’s
import is mistaken. In particular, we specifically reject Mr. Jones’s assertion that
Ross stands for the following broad proposition: “When a person is seized outside
the state jurisdictional limit of a law enforcement officer who is acting without a
warrant, that person’s Fourth Amendment constitutional right to be free from
unreasonable seizures has been violated.” Id. at 19–20. At bottom, we conclude
19
that Ross is not controlling under the totality of the circumstances present
here—where, inter alia, the Missouri officers unknowingly traveled into another
state, Kansas; they conducted an unauthorized criminal investigation there
(although Kansas does allow, in very limited circumstances, law enforcement
officers from another state to operate within its borders); and they ultimately
seized Mr. Jones.
In sum, for all of the foregoing reasons, we reject Mr. Jones’s argument
that the Missouri officers’ seizure of him in Kansas effected a Fourth Amendment
violation simply because they were acting outside of their jurisdiction and without
authority under Kansas law.
B
“The Fourth Amendment protects the public from ‘unreasonable searches
and seizures,’ U.S. Const. amend. IV, including unreasonable ‘investigatory
stop[s]’ or detentions.” United States v. McGehee, 672 F.3d 860, 866 (10th Cir.
2012) (alteration in original) (quoting United States v. Simpson, 609 F.3d 1140,
1146 (10th Cir. 2010)). The Supreme Court has identified three types of police-
citizen encounters: consensual encounters, investigative stops, and arrests. See
Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000). First, “[c]onsensual
encounters are not seizures within the meaning of the Fourth Amendment, and
need not be supported by suspicion of criminal wrongdoing.” Id. Second,
20
“[i]nvestigative Terry stops, are, however, ‘seizures’ within the meaning of the
Fourth Amendment; accordingly, a law enforcement officer, based on the totality
of the circumstances, ‘must have a particularized and objective basis for
suspecting the particular person stopped of criminal activity.’” United States v.
Villagrana-Flores, 467 F.3d 1269, 1273 (10th Cir. 2006) (quoting United States v.
Cortez, 449 U.S. 411, 417–18 (1981)); see United States v. Guardado, 699 F.3d
1220, 1222 (10th Cir. 2012) (“In the absence of probable cause, the
constitutionality of a search or seizure hinges on the objective reasonableness of
an officer’s suspicion.”). Finally, “actual arrests, which are characterized by a
highly intrusive or lengthy search or detention, require that a reasonable officer
would have probable cause to believe the arrestee has committed a crime.”
Villagana-Flores, 467 F.3d at 1273 (citations omitted) (internal quotation marks
omitted).
It is important to recognize that “[t]hese categories are not static and may
escalate from one to another,” United States v. White, 584 F.3d 935, 945 (10th
Cir. 2009) (quoting Cortez v. McCauley, 478 F.3d 1108, 1115 n. 5 (10th Cir.
2007) (en banc)) (internal quotation marks omitted), and “[a] reviewing court
must analyze each stage of the [police-citizen] encounter, ensuring that the
requisite level of suspicion or cause is present at each stage,” id. (second
alteration in original) (quoting United States v. Shareef, 100 F.3d 1491, 1500
(10th Cir. 1996)) (internal quotation marks omitted).
21
1
The district court held that Mr. Jones was not seized “at the time of the
initial conversation between [Mr. Jones] and [the Missouri officers because] a
reasonable person would not have felt that he or she was unable to terminate the
encounter.” R., Vol. I, at 126. Mr. Jones argues that this was error under the
factors we set forth in United States v. Rogers, 556 F.3d 1130, 1137–38 (10th Cir.
2009), for assessing whether a citizen has been seized for purposes of the Fourth
Amendment.
It is well-established that “a seizure does not occur simply because a police
officer approaches an individual and asks a few questions.” United States v.
Lopez, 443 F.3d 1280, 1283 (10th Cir. 2006) (quoting Florida v. Bostick, 501
U.S. 429, 434 (1991)) (internal quotation marks omitted). “[A] person has been
‘seized’ within the meaning of the Fourth Amendment only if, in view of all of
the circumstances surrounding the incident, a reasonable person would have
believed that []he was not free to leave.” United States v. Fox, 600 F.3d 1253,
1258 (10th Cir. 2010) (first alteration in original) (quoting United States v.
Mendenhall, 446 U.S. 544, 554 (1980)) (internal quotation marks omitted); see,
e.g., United States v. Salas-Garcia, 698 F.3d 1242, 1248 (10th Cir. 2012) (“A
seizure occurs when ‘a reasonable person would not feel free to leave or disregard
the contact.’” (quoting Lundstrom v. Romero, 616 F.3d 1108, 1119 (10th Cir.
2010))). “The critical inquiry is whether the police conduct would have
22
communicated to a reasonable person that []he was not at liberty to ignore the
police presence and go about [his] business.” Fox, 600 F.3d at 1258 (quoting
Bostick, 501 U.S. at 437) (internal quotation marks omitted).
In Rogers, we stated that to determine whether an individual has been
seized, we should consider several factors, including:
(1) the threatening presence of several officers; (2) the
brandishing of a weapon by an officer; (3) physical touching by
an officer; (4) aggressive language or tone of voice by an officer
indicating compliance is compulsory; (5) prolonged retention of
an individual’s personal effects; (6) a request to accompany an
officer to the police station; (7) interaction in a small, enclosed,
or non-public place; and (8) absence of other members of the
public.
556 F.3d at 1137–38. We also have considered whether an officer indicated to
the person that he is free to leave. See United States v. Ledesma, 447 F.3d 1307,
1314–15 (10th Cir. 2006). As we evaluate these factors below, we stress that no
single factor is dispositive, and this list is not exhaustive. Rogers, 556 F.3d at
1138.
With these principles in mind, we conclude that, under the totality of the
circumstances, a reasonable person in Mr. Jones’s position would have felt free to
terminate his encounter with the Missouri officers outside of his home and go
about his business during his initial interaction with them. See Fox, 600 F.3d at
1258. In other words, the period of time between when the officers first walked
up to Mr. Jones until the time the officers took Mr. Jones’s license was a
23
consensual encounter. This conclusion is strongly supported by the specific facts
of this case when considered in light of the factors we articulated in Rogers:
(1) while there were three officers on the scene, the testimony presented by
Sergeant Blunt indicated that the officers’ presence was non-threatening; (2) no
officer “brandished” his weapon; 6 (3) the officers did not physically touch Mr.
Jones; (4) Sergeant Blunt’s tone during the initial conversation was calm and
casual; (5) during the initial conversation the officers did not retain Mr. Jones’s
personal effects; and (6) the officers did not request Mr. Jones to accompany them
to a police station. See Rogers, 556 F.3d at 1137–38. These facts militate in
favor of a conclusion that the initial encounter between the Missouri officers and
Mr. Jones was consensual.
We acknowledge that, at least arguably, certain facts march in a different
direction. Most potent among these facts is the accusatory nature of Sergeant
Blunt’s very first statement to Mr. Jones—viz., that he (Sergeant Blunt) was there
“for [Mr. Jones’s] marijuana plants.” R., Vol. II, at 187. Arguably, the statement
would have been somewhat jolting to a reasonable person. We accept the notion
that Sergeant Blunt’s statement likely would have been appreciably more coercive
6
We know of no definition of “brandishing” that would include a law
enforcement officer merely wearing his gun in the normal course of his duties. See
United States v. Bowen, 527 F.3d 1065, 1072–74 (10th Cir. 2008) (describing the various
meanings of the concept of “brandish”).
24
to a citizen than if the same subject matter had been addressed in a question, e.g.,
“do you have any marijuana plants?” See Ledesma, 447 F.3d at 1315 (noting, in
assessing whether consent to search was given in connection with a consensual
law enforcement-citizen encounter, that “[t]he request was phrased as a
question”); United States v. Little, 60 F.3d 708, 712 (10th Cir. 1995) (“[W]e did
not hold that the manner of asking incriminating questions was irrelevant. Nor
would it be proper to do so.”); see also Aplt. Opening Br. at 26 (“Posing a request
for consent to search as a question, by its nature, implies that the person to whom
the question is directed is free to answer yes or no.”).
It does not follow, however, that a reasonable person would have been so
cowed by such an accusatory assertion that he would have believed that he was
not free to discontinue the encounter and go about his business. Cf. Fox, 600
F.3d at 1258. On these particular facts, we cannot conclude that Sergeant Blunt’s
comment would have had this cowing effect on a reasonable person. It was a
single statement—not part of a series of accusatory remarks. Cf. Little, 60 F.3d at
712 (“Accusatory, persistent, and intrusive questioning can turn an otherwise
voluntary encounter into a coercive one.” (internal quotation marks omitted)).
And the statement was “spoken in an ordinary tone of voice.” Ledesma, 447 F.3d
at 1315. We do not believe that Mr. Jones reasonably could have concluded from
this single comment that he was not free to discontinue his encounter with
Sergeant Blunt.
25
Furthermore, we acknowledge that Sergeant Blunt and the other Missouri
officers never told Mr. Jones that he was free to leave. Although this is a factor
to consider, the officers were not required to inform Mr. Jones that he was free to
leave. See id. at 1314 (“[O]fficers need not expressly inform suspects that they
are free to go before requesting permission to conduct a search.”).
Finally, we recognize that this encounter took place in an alley behind Mr.
Jones’s house instead of, for example, on a busy public street. However, the
district court expressly found as follows: “The troopers did not encircle
Defendant. They parked their cars in the alley behind him but did not block the
alley from the other direction . . . . Additionally, the court notes that this
exchange took place in a relatively open area that was not out of the public’s
view.” R., Vol. I, 125–26 (footnote omitted) (citation omitted). Mr. Jones has
not established that these findings are clearly erroneous. And, based upon them,
we cannot conclude that the alley setting of the encounter appreciably advances
Mr. Jones’s seizure contention. Consequently, even giving full consideration to
the Rogers factors, we conclude that the totality of the circumstances here
indicate that the initial encounter between Mr. Jones and the Missouri officers
(before they took Mr. Jones’s license) was consensual. Thus, we conclude that
Mr. Jones was not seized within the meaning of the Fourth Amendment during his
initial encounter with the Missouri officers.
26
2
Although we have concluded that Mr. Jones was not seized under the
Fourth Amendment during his initial encounter with the Missouri officers, the
government acknowledges that Mr. Jones was seized once the officers took Mr.
Jones’s license and proceeded to conduct a records check based upon it. See, e.g.,
United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir. 1995) (“[W]hat began as
a consensual encounter quickly became an investigative detention once the agents
received [the defendant’s] driver’s license and did not return it to him.”).
Recognizing that a seizure had occurred at that point, the district court concluded
that the officers’ actions were nevertheless reasonable because, based on the
totality of the circumstances, the officers had “reasonable, articulable,
individualized grounds for suspecting [Mr. Jones] of criminal activity . . . at the
time [they] asked for and retained [Mr. Jones’s] identification.” R., Vol. I,
at 128.
As previously noted, an investigative detention must be justified by
reasonable suspicion. Although his briefing on the subject is far from pellucid,
Mr. Jones does not appear to directly challenge the propriety of the district
court’s reasonable-suspicion determination. Rather, resurrecting Ross, he
contends that the seizure that occurred when the officers took his driver’s license
was not permissible because the Missouri officers were operating outside of their
jurisdiction. See Aplt. Opening Br. 21 (“In this case, however, no seizure was
27
permitted [when Mr. Jones’s identification was taken], because there was no
warrant, and the officers were acting outside their state jurisdiction.”). For the
reasons noted in Part III.A, supra, that argument is misguided; consequently, we
reject it.
Even if Mr. Jones’s briefing could be read as presenting a challenge to the
correctness of the district court’s reasonable-suspicion determination, 7 Mr.
Jones’s position would be untenable. To determine whether reasonable suspicion
exists, “we must look to the ‘totality of the circumstances,’ rather than assessing
each factor or piece of evidence in isolation.” McGehee, 672 F.3d at 867 (quoting
United States v. Salazar, 609 F.3d 1059, 1068 (10th Cir. 2010)); see United States
v. Conner, 699 F.3d 1225, 1228 (10th Cir. 2012) (“Investigative detentions are
Fourth Amendment seizures of limited scope and duration. In order to effect a
lawful stop, police must have an objectively reasonable and articulable suspicion
that criminal activity is afoot.” (citations omitted)). Under this totality-of-the-
circumstances test, “[n]o one factor is determinative.” McGehee, 672 F.3d at 867(quoting United States v. Holt, 264 F.3d 1215, 1220 (10th Cir. 2001) (en banc),
abrogated on other grounds as stated in United States v. Stewart, 473 F.3d 1265,
1268–69 (10th Cir. 2007)) (internal quotation marks omitted). “When making our
assessment, ‘deference is to be accorded a law enforcement officer’s ability to
7
In a short argument, the government defends the district court’s reasonable-
suspicion determination. See Aplee. Br. at 11–12.
28
distinguish between innocent and suspicious actions,’” id. (quoting United States
v. Wood, 106 F.3d 942, 946 (10th Cir. 1997)), and we “need not rule out the
possibility of innocent conduct,” id. (quoting United States v. Albert, 579 F.3d
1188, 1197 (10th Cir. 2009)) (internal quotation marks omitted). “[W]e consider
the reasonableness of an officer’s actions using an ‘objective standard.’” Id.(alteration in original) (quoting United States v. Winder, 557 F.3d 1129, 1134
(10th Cir. 2009)). “Under this objective standard, we ask ‘whether the facts
available to the detaining officer, at the time, warranted an officer of reasonable
caution in believing the action taken was appropriate.’” Id. (quoting Winder, 557
F.3d at 1134) (internal quotation marks omitted).
To begin, there were a number of facts available to the Missouri officers at
the time they took Mr. Jones’s license that would have justified their objectively
reasonable suspicion that Mr. Jones was engaged in criminal activity, warranting
his detention for further investigation. See McGehee, 672 F.3d at 867; United
States v. Occhipinti, 998 F.2d 791, 800 (10th Cir. 1993). Among these suspicious
facts is Sergeant Blunt’s personal observation of Mr. Jones’s visit to the Grow
Your Own hydroponics store, an establishment that—although legal—was, in
Sergeant Blunt’s extensive experience, a store that sold all the necessary
components to grow marijuana. And it was the type of store that had in the past
been frequented by persons that grew marijuana indoors. In addition, at the time
the Missouri officers took Mr. Jones’s license, they knew that Mr. Jones had been
29
on parole in Missouri for a prior drug offense.
Finally, another significant signal of possible criminal activity came from
Mr. Jones himself—specifically, his reaction upon encountering the Missouri
officers. Upon walking up to Mr. Jones, Sergeant Blunt said, “I’m Sergeant Troy
Blunt with the Missouri State Highway Patrol conducting a drug investigation,
and I’m here for your marijuana plants.” R., Vol. II, at 187. Mr. Jones responded
by saying, “Oh shit.” Id. at 189. Sergeant Blunt reasonably could have
interpreted this response as suggestive of Mr. Jones’s involvement in criminal
activity. In particular, Sergeant Blunt could have reasonably inferred that Mr.
Jones was concerned about his investigation of marijuana plants because Mr.
Jones was in possession of such plants. 8 Cf. United States v. Lopez-Gutierrez,
334 F. App’x 880, 883–84 (10th Cir. 2009) (observing that a defendant’s
spontaneous statement to an officer that the vehicle had been in his friend’s
possession overnight served to reasonably “heighten” the officer’s suspicion);
United States v. Karam, 496 F.3d 1157, 1164 (10th Cir. 2007) (holding that a
8
At oral argument, Mr. Jones’s counsel argued that, although “perhaps” Mr.
Jones’s statement, “Oh shit,” could be interpreted as an indication that he actually had
marijuana, it could also mean “that he’s got to go through something that he has gone
through before and that’s a police intrusion into his life.” Oral Arg. at 05:10–05:17. As
we understand this argument, Mr. Jones’s reaction to Sergeant Blunt could have been an
innocent reaction. However, in examining the facts available, we “need not rule out the
possibility of innocent conduct.” McGehee, 672 F.3d at 867 (quoting Albert, 579 F.3d at
1197). It is enough that Mr. Jones’s reaction to Sergeant Blunt could reasonably have
been interpreted as indicative of his involvement in criminal activity.
30
suspicious statement by defendant supported reasonable suspicion even if the
officer made an objectively reasonable mistake of fact as to the truth of the
statement). Giving deference to the judgment of the Missouri officers in
distinguishing between innocent and suspicious actions, as we must, see
McGehee, 672 F.3d at 867; Wood, 106 F.3d at 946; United States v. Lopez-
Martinez, 25 F.3d 1481, 1484 (10th Cir. 1994), under the totality of the
circumstances, it is patent that, when the Missouri officers took Mr. Jones’s
license to further conduct their investigation—thereby effecting a seizure of Mr.
Jones—their action was supported by reasonable suspicion of criminal activity.
C
We must next determine whether the officers’ subsequent entry into Mr.
Jones’s residence was lawful under the Fourth Amendment. The district court
held that the government met its burden of showing that Mr. Jones voluntarily
gave consent to the Missouri officers to enter his residence. On appeal, Mr. Jones
disagrees, stating that the government’s “burden cannot be met by showing a mere
submission to a claim of lawful authority.” Aplt. Opening Br. at 25. Under the
circumstances present here, we conclude that Mr. Jones’s argument is unavailing.
It is beyond question that the Missouri officers’ entry into the home
constituted a search for purposes of the Fourth Amendment—no matter how
limited it was in scope. See Payton v. New York, 445 U.S. 573, 582 n.17 (1980)
31
(“Inasmuch as the purpose of the Fourth Amendment is to guard against arbitrary
governmental invasions of the home, the necessity of prior judicial approval
should control any contemplated entry, regardless of the purpose for which that
entry is sought.” (emphasis added)); id. at 585–86 (“[T]he ‘physical entry of the
home is the chief evil against which the wording of the Fourth Amendment is
directed.’” (quoting United States v. U.S. Dist. Court, 407 U.S. 297, 313 (1972));
accord United States v. Najar, 451 F.3d 710, 717 (10th Cir. 2006); United States
v. Davis, 290 F.3d 1239, 1241–42 (10th Cir. 2002). “A warrantless search of a
home is presumptively unreasonable, and evidence obtained from such a search is
inadmissible, subject only to a few carefully established exceptions.” United
States v. Harrison, 639 F.3d 1273, 1278 (10th Cir. 2011).
“Voluntary consent to search is one such exception.” Id.; see Schneckloth
v. Bustamonte, 412 U.S. 218, 219 (1973). “Voluntary consent” consists of two
parts: (1) the law enforcement officers must receive either express or implied
consent, and (2) that consent must be freely and voluntarily given. See Florida v.
Royer, 460 U.S. 491, 497 (1983) (“[W]here the validity of a search rests on
consent, the State has the burden of proving that the necessary consent was
obtained and that it was freely and voluntarily given, a burden that is not satisfied
by showing a mere submission to a claim of lawful authority.”); Cruz-Mendez,
467 F.3d at 1265 (“[C]onsent is valid only if it is freely and voluntarily given.”
32
(citation omitted) (internal quotation marks omitted)); see also United States v.
Carter, 378 F.3d 584, 587 (6th Cir. 2004) (“In whatever form, consent has effect
only if it is given freely and voluntarily.”).
In determining the voluntariness of consent, the Fourth Amendment
requires that “a consent not be coerced, by explicit or implicit means, by implied
threat or covert force. For, no matter how subtly the coercion [i]s applied, the
resulting ‘consent’ would be no more than a pretext for the unjustified police
intrusion against which the Fourth Amendment is directed.” Schneckloth, 412
U.S. at 228. It is the government’s “burden of proving that consent is given
freely and voluntarily.” Harrison, 639 F.3d at 1278. Further, “[t]he question
whether a consent to a search was in fact ‘voluntary’ or was the product of duress
or coercion, express or implied, is a question of fact to be determined from the
totality of all the circumstances.” Id. (quoting Schneckloth, 412 U.S. at 227)
(internal quotation marks omitted).
When considering the totality of the circumstances, some of the relevant
considerations include:
physical mistreatment, use of violence, threats, promises,
inducements, deception, trickery, or an aggressive tone, the
physical and mental condition and capacity of the defendant, the
number of officers on the scene, and the display of police
weapons. Whether an officer reads a defendant his Miranda
rights, obtains consent pursuant to a claim of lawful authority, or
informs a defendant of his or her right to refuse consent also are
33
factors to consider in determining whether consent given was
voluntary under the totality of the circumstances.
Id. (quoting Sawyer, 441 F.3d at 895) (internal quotation marks omitted).
As previously noted, Mr. Jones’s license was in the possession of the
Missouri officers when they entered his residence. Therefore, he was clearly
seized under the Fourth Amendment. However, “[a] person may voluntarily
consent to a search even while being legally detained.” United States v.
Contreras, 506 F.3d 1031, 1037 (10th Cir. 2007); see United States v. Mendez,
118 F.3d 1426, 1432 (10th Cir. 1997) (“A person who is being detained may give
a voluntary consent to search.”); United States v. McRae, 81 F.3d 1528, 1537
(10th Cir. 1996) (“A person who is being detained may still give a voluntary
consent.”); United States v. Soto, 988 F.2d 1548, 1557 (10th Cir. 1993) (“Valid
consent may be given by a person being detained.”); see also United States v.
Olivares-Campos, 276 F. App’x 816, 824 (10th Cir. 2008) (“[Although being]
detained during an investigation no doubt implies an atmosphere not altogether
consensual, our precedent firmly instructs us that the fact of an investigative
detention, standing alone, is not so coercive as to render the consent of all
detained persons involuntary.”). “[D]etention is only one factor to be considered
in determining whether consent was voluntarily and freely given based on the
totality of the circumstances.” Contreras, 506 F.3d at 1037.
34
Mr. Jones argues that the Missouri officers never obtained valid consent to
enter his home for two reasons. First, he argues that the Missouri officers’
interaction with him—including Sergeant Blunt’s statements that “I’m here for
your marijuana plants,” and “let’s clear up what we have here today . . . [and]
make sure that there [are no marijuana plants] here at your house,” R., Vol. II, at
187, 193—resulted in an atmosphere in which he reasonably believed that he was
not free to disregard or ignore the officers’ request to search his residence. See
Aplt. Opening Br. at 25–26. Even if he had given consent to enter his residence,
Mr. Jones reasons, the Missouri officers’ actions rendered the consent
involuntary. Second, Mr. Jones argues that, before the officers entered his house,
they never actually received his oral or written consent, despite the fact that
“troopers routinely carry written consent forms.” Id. at 22. We address these
arguments in turn.
Mr. Jones argues that Sergeant Blunt’s statements rendered involuntary any
consent that Mr. Jones may have given. Two of his statements are of primary
importance for our analysis: Sergeant Blunt’s statement that “I’m here for your
marijuana plants”; and his statement, “let’s clear up what we have here today . . .
[and] make sure that there [are no marijuana plants] here at your house,” R., Vol.
II, at 187, 193.
The first statement was accusatory and may well have been jolting to a
35
reasonable person. 9 However, as suggested by our earlier examination of this
statement (see Part III.B.1), we cannot conclude that a reasonable person would
9
At least arguably, Sergeant Blunt used this accusatory approach to trick Mr.
Jones into dropping his guard and making incriminating statements that he might not have
otherwise made in responding to less-aggressive language that merely asked about his
possible criminal activity. At the time that he made the statement, Sergeant Blunt did not
know whether Mr. Jones actually had any marijuana plants. Yet, instead of inquiring
about Mr. Jones’s possible possession of marijuana plants, Sergeant Blunt sought to
convey the impression to Mr. Jones (albeit falsely) through his accusatory assertion that
Mr. Jones’s criminal possession was a known fact. Indeed, Sergeant Blunt’s testimony
leaves little doubt that he hoped that his accusatory statement would have a jolting effect
on Mr. Jones—specifically, that the statement would prompt Mr. Jones to make a
response without carefully considering the possibly incriminating nature of his words or
actions. See, e.g., R., Vol. II, at 189–90 (“[T]hat’s why I used that approach like that, is
to see what his visual reaction is to it, to continue the investigation.”).
However, although it is a relevant consideration in the consent calculus, the use of
deception is not categorically unlawful. See, e.g., Sawyer, 441 F.3d at 895 (listing
“deception” and “trickery” as factors in the totality-of-the-circumstances analysis used in
assessing the validity of consent); 4 Wayne R. LaFave, Search and Seizure § 8.2(n), at
136–37 (4th ed. 2004) (collecting cases and noting that certain kinds of deception are not
“inherently incompatible with consent”); see also Harrison, 639 F.3d at 1278 (“We have
repeatedly held that deception and trickery are among the factors that can render consent
involuntary.” (emphasis added)). Viewed in the context of all the circumstances present
here, we cannot conclude that Sergeant Blunt’s arguable use of deceit or trickery had a
significant impact on the nature of Mr. Jones’s consent—that is, on whether his consent
was voluntary. It is not the kind of deceit or trickery that ordinarily has been employed to
secure consent to search, as opposed to unguarded incriminatory reactions or admissions.
For example, this is not a case where Sergeant Blunt lied about the purpose of the
investigation or “create[d] the impression that the defendant will be in physical danger if
he or she refuses to consent to the search.” Harrison, 639 F.3d at 1279; see 4 LaFave,
supra, § 8.2(n), at 133 (discussing circumstances where “[t]he known official may engage
in deception which leads the consenting party to conclude that the official’s objective is
other than criminal prosecution or that the official’s objective relates to a form of criminal
activity different from that which actually prompted the official to seek consent”). And
Mr. Jones has not suggested that any such deceit or trickery played a role in his
subsequent grant of consent to search.
36
have felt so threatened or cowed by the statement that he or she would have
involuntarily complied with an officer’s requests or directions—viz., that a
reasonable person would have been so adversely impacted by the statement that
he or she would have involuntarily consented to a search. In other words,
assessed in light of these particular facts, we cannot conclude that this statement
would have been sufficiently potent—viewed objectively—to override Mr.
Jones’s free will.
Nor do we believe that the second statement moves Mr. Jones significantly
closer to the goalpost. To be sure, that statement expressed Sergeant Blunt’s
desire to keep his investigative focus on Mr. Jones’s residence. However, nothing
in this record leads us to believe that a reasonable person would have been so
enervated by the surrounding circumstances that he would not have felt capable of
rebuffing Sergeant Blunt’s desired investigative plan. In other words, we cannot
conclude from this record that Sergeant Blunt’s statement of investigative
intent—viewed alone, or coupled with his first statement about the marijuana
plants—was objectively sufficient to overpower Mr. Jones’s free will and render
him incapable of denying consent to enter his residence.
Indeed, the record belies the contention that Mr. Jones did not voluntarily
consent to the officers’ entry into his residence. After Mr. Jones’s license was
seized, Sergeant Blunt indicated to Mr. Jones that they would like to search his
37
residence. Subsequently, Mr. Jones turned and began walking toward his house.
The officers followed Mr. Jones through a porch area to the back door, where Mr.
Jones (without being physically forced to do so) produced a set of keys to unlock
the storm door. After entering the residence, Mr. Jones walked through the
kitchen and into a living room area, at which time he turned and faced the
troopers to make a gesture with his hands as if to indicate, “see, I got no plants. I
got nothing.” R., Vol. II, at 199. Sergeant Blunt then gave Mr. Jones a look
indicating “I can smell [the marijuana]” and “let’s just get this over with.” Id.
The record indicates that Mr. Jones was “free to move about [his] home and
. . . determine where he wanted to lead the officers,” id., Vol. I, at 131—a fact
that greatly undercuts Mr. Jones’s protestation that he was merely submitting to
“a claim of lawful authority.” Aplt Opening Br. at 25. Furthermore, we note the
absence of any physical mistreatment of Mr. Jones, and the absence of any threats
or promises made by the officers. See Harrison, 639 F.3d at 1278. Nor is there
anything in the record to suggest that Mr. Jones’s physical or mental condition (or
capacity) was diminished. See id.; Sawyer, 441 F.3d at 895.
In sum, on these facts, the only objectively reasonable conclusion we can
draw is that Mr. Jones’s consent was freely and voluntarily given. And there is
no factual support for the view that his consent was borne out of duress or
coercion. See United States v. McKneely, 6 F.3d 1447, 1453 (10th Cir. 1993);
38
United States v. Iribe, 11 F.3d 1553, 1557 (10th Cir. 1993) (holding that the
presence of five officers did not outweigh the numerous factors indicating that the
resident voluntarily consented, including that the defendant voluntarily allowed
the officers to enter the house, that she was not coerced, frightened or otherwise
threatened, that she had a cordial conversation with officers spoken in low
volume, and that the officers made no promises or threats in an attempt to extract
her consent). 10
Voluntariness aside, in his second argument, Mr. Jones contends that he
never actually consented to the officers’ entrance into his residence when he
turned and walked away from them. We note at the outset that the fact that Mr.
Jones did not give explicit consent—oral or written—to the Missouri officers to
enter his residence is not determinative. An implied consent to search would be
no less valid. See United States v. Patten, 183 F.3d 1190, 1192–95 (10th Cir.
1999) (holding that consent to search was valid where the officer repeatedly asked
the defendant to open his suitcase and in response the defendant did so gradually);
10
For the first time in his reply brief, Mr. Jones contends that any consent that
he gave was legally infirm because he did not know that the Missouri officers were
operating outside of their jurisdiction; he deems this to be an issue of informed consent
(or, more precisely, the lack thereof). See Aplt. Reply Br. at 5 (“Mr. Jones, however,
would have never given consent to the Missouri Highway Patrol to search his residence
had he known that they were acting beyond their authority, and he was under no
obligation to do so.”). We decline to consider this late-blooming contention. See, e.g.,
United States v. Bader, 678 F.3d 858, 876 n.11 (10th Cir. 2012).
39
United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 1999) (“When [the officer]
encountered the locked bag, she asked [the defendant], ‘Can you open that?’ [The
defendant] apparently did not respond verbally but removed the key from his
pocket and handed it to [the officer].” (citation omitted)); see also Carter, 378
F.3d at 587 (“Consent to a search may be in the form of words, gesture, or
conduct.” (citation omitted) (internal quotation marks omitted)). In other words,
if Mr. Jones said or did something that permitted the Missouri officers to form a
reasonable belief that Mr. Jones was authorizing them to follow him into his
residence, then Mr. Jones may be deemed to have impliedly consented to their
entry of his home. See United States v. Guerrero, 472 F.3d 784, 789–90 (10th
Cir. 2007) (“Consent may instead be granted through gestures or other indications
of acquiescence, so long as they are sufficiently comprehensible to a reasonable
officer.”); accord United States v. Sanchez, 156 F.3d 875, 878 (8th Cir. 1998)
(“[W]hether or not the suspect has actually consented to a search, the Fourth
Amendment requires only that the police reasonably believe the search to be
consensual.”); see also United States v. Coulter, 461 F. App’x 763, 766–67 (10th
Cir. 2012) (holding that implied consent was valid where an officer explained that
he did not want an occupant to go inside her house alone for officer-safety
reasons, and the occupant simply looked at the officer and entered the house with
the officer following); United States v. Malady, 209 F. App’x 848, 851–52 (10th
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Cir. 2006) (holding that the consent was valid where the “Appellant told the
officer that the vehicle ownership papers the officer had requested were upstairs,
then Appellant walked up the stairs without further conversation” and “[a]t no
point did Appellant tell the officer to stay downstairs or otherwise indicate that
the officer was not welcome to follow him”).
There can be no doubt that Mr. Jones’s actions here—though non-
verbal—could have been reasonably interpreted by the Missouri officers as
communicating Mr. Jones’s consent to their accompanying him into his home.
Briefly revisiting the factual landscape, sometime after Sergeant Blunt took Mr.
Jones’s license, he indicated to Mr. Jones that the officers would like to search his
residence. Sergeant Blunt testified that Mr. Jones responded by turning and
beginning to walk toward the back door of his residence. Upon walking up to his
backdoor, Mr. Jones made no attempt to stop the officers—through words or
otherwise—from following him into his residence. Nor did Mr. Jones inquire
why the officers were following him. These and other affirmative acts—such as
unlocking his backdoor and, once inside, turning toward the officers to make a
gesture with his hands as if to state, “see, I got no plants. I got nothing”—are not
actions that a reasonable officer would have interpreted as signaling Mr. Jones’s
refusal of the officers’ entry into his residence. Thus, for purposes of the Fourth
Amendment, it is clear that Mr. Jones’s conduct constituted legally sufficient
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consent for the officers to enter his residence.
D
Finally, Mr. Jones argues that the district court improperly refused to
suppress the evidence that was obtained from the Kansas search warrants for his
home and vehicle because Kansas law enforcement principally relied upon
information that was illegally unearthed by the Missouri officers. Specifically,
Mr. Jones argues that the Missouri officers came across the evidence while
operating outside their jurisdiction and as a result of illegally seizing him and
entering his home without consent. See Aplt. Opening Br. at 30 (“[T]he facts
critical to a probable cause determination, submitted to the magistrate in the
warrant application, were the product of the illegal seizure of Jones, and the
warrantless, nonconsensual entry into his home.”). However, we have concluded
that the Missouri officers’ lack of authority under Kansas law is of no import to
the Fourth Amendment seizure analysis on these facts; that Mr. Jones was not
otherwise improperly seized, as the seizure was supported by reasonable
suspicion; and that Mr. Jones provided legally sufficient consent to authorize the
Missouri officers’ entry into his home. Therefore, the evidence that the Missouri
officers obtained during their investigation could properly form the basis for the
two warrants secured by the Kansas officers. The district court did not err in
declining to suppress evidence discovered in the searches authorized by these
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warrants.
IV
For the foregoing reasons, we AFFIRM the district court’s order denying
Mr. Jones’s motion to suppress and the court’s resulting judgment.
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